TALIBAN JOHN: THE DISCOVERY MOTION

ON MONDAY, JOHN WALKER LINDH’S LAWYERS were in Virginia federal court making what lawyers call a “discovery” motion, trying to obtain information from the government bearing on their client’s defense. Apparently treated as routine by the media – Associated Press ran a short wire service story; CNN had little to report – the hearing was anything but routine, especially because of one particular card the defense tried to play.

To understand the defense tactics at play in its discovery motion, we have to differentiate between different kinds of material.

Although the government has already turned over to the defense literally thousands of pages of material, Lindh’s lawyers had requested thousands more. Some they will get. Much they will not.

Nearly forty years ago, in the case of Brady v. Maryland, the Supreme Court of the United States held that in a criminal case the prosecution must turn over to the defense any material in its possession, even if it only might tend to exculpate the defendant. There is no argument in the Walker-Lindh case about this so-called Brady Material. The defense knows that it is entitled to it, and the government knows its responsibility – let alone what could happen if it failed to comply with the Brady requirement. Indeed, several times at the hearing the judge reminded the prosecution of its duty to provide exculpatory material to the defense.

Lindh’s lead defense lawyer also sought a more detailed indictment, in an attempt to narrow the charges against his client. The judge denied the request, reminding the defense of something they know very well: that Lindh is not charged with trying to kill specific Americans. Because the judge did not “read the indictment as pointing to a specific murder,” he stated that the government was “not required to show that [Lindh] shot at Americans.” On the contrary, as the Associated Press reported, the judge clearly understood that the indictment charges Lindh with “joining a broad conspiracy by al-Qaeda and the Taliban to kill Americans around the world.” And proof of that conspiracy requires only that there have been an agreement to do so, that Lindh was one of those who agreed, and that any member of the conspiracy committed an overt act in furtherance of that agreement – even if the act was legal unto itself.

The next piece of discovery the defense sought was “access” to someone designated as “CS [confidential source] –1.” Doubtless this refers to the CIA agent, “Dave,” who, with the deceased Mike Spann, interrogated Lindh when he was flushed out of the prison basement. This request introduces the concept of “graymail” – a tactic used by defense lawyer in national security cases. The idea is for the defense to seek in discovery highly sensitive material and information so that the government is put on the horns of a dilemma: comply with the request, and risk compromising important secrets (which the government is loathe to do), or refuse to comply, and risk dismissal of the case (which the government certainly doesn’t want). All that prevents graymail from succeeding is a judge who will decide that the sought discovery is either irrelevant or so sensitive that either the defense can’t have it or, if it can have it, the material is delivered, held, and used, under carefully crafted safeguards. Since all that the defense can legitimately want from “Dave” is information about the aborted interrogation of its client, which the government is apparently willing to provide, it will be surprising if the judge allows the defense anything more than an opportunity to interview “Dave.” It is unlikely that a graymail attempt to learn his identity or anything else about him will succeed.

Furthering the graymail tactic was a defense request for “access” to, and information about, the detainees being held in Guantanamo. The prosecution requested, and received, more time to sort out that one. If the government objects the judge will probably require the defense to make a very strong showing of relevance. But even that will have to overcome what are bound to be serious national security considerations.

All in all, the defense’s tactics at the discovery hearing were predictable: seek Brady Material that Lindh is entitled to, and that the government would produce anyhow; request every piece of paper in the government’s possession that in any manner whatsoever has anything at all to do with Lindh; try to narrow the indictment to make the government prove what it has not alleged (and thus can’t prove); and throw in a dash or two of graymail. I predict, however, that this judge will not allow the defense to go on a fishing expedition. He will make sure (though he doesn’t have to) that Brady Material is provided; he will direct the government to deliver only relevant documents; he will allow the indictment, charging only an easy-to-prove conspiracy, to stand as drawn; and he will not allow the defense to succeed in its graymail game.

Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is co-author of the recently published “Aid and Comfort”: Jane Fonda in North Vietnam. For information about “Aid and Comfort” see www.hanoijane.net, and for additional information about the John Walker Lindh case see www.talibanjohn.info.

What was the point of releasing the photo of Johnny Jihad blindfolded and bound to a stretcher in a shipping container?

Was it to make us forget he'd thrown in with the folks who brought us 9/11?

It failed to evoke a nanogram of sympathy--after all, this trash wasn't vaporized in the hellish terror attack he approved.

... concept of “graymail” – a tactic used by defense lawyer in national security cases."

And then lawyers wonder why the public holds their profession in such contempt. The thought process of not defending the criminal over what he did, but to get him off by trading national security vs justice ...

I have a suggestion. Let's drop all charges against Johnny Walker, and let him go for a private walk without police protection. I'm sure Allah will protect the just, and allow the wicked to be punished, just like Jeffrey Dahmer...

one particular card the govt lawyers can play:

Johnny confessed he participated in supporting jehadis in Kashmir for a while - his first deployment.

Our Indian friends should announce their intention to interrogate Johnny. His lawyer will decline.

About two weeks before the trial in the midst of the Johnny's team pre-trial publicity parade, the Indians should serve a formal extradition request for after the trial, whatever the outcome.

Plea bargain Johnny with the bargain he won't be sent to India. Surely the threat of Indian jail time for this punk jehadi will give him "something to think about."

Push the Indians to do it. It's worth avoiding an Oprahized trial for this rat.

Let's drop all charges against Johnny Walker, and let him go for a private walk without police protection. I'm sure Allah will protect the just, and allow the wicked to be punished, just like Jeffrey Dahmer...

Interesting thought. Here's what might have happened to Johnny Taliban if he'd been born in 1846.

The dude in the photo had been pardoned by the governor, but folks didn't agree with the pardon, so they left it in his pocket and hoisted him aloft!

Just because someone calls it something suggestively unpleasant like "greymail" doesn't mean it is improper. Some people dismiss constitutional rights as "technicalities," too, but that doesn't mean the Constitution is just a bother.

The first rule in criminal defense (well, the second, the first being "get your fee up front") is don't trust the government. Defense lawyers have a legitimate interest, and are indeed professionally obligated to examine the potential evidence. If this puts some hard decisions before the government, tough. We inherited an adversary system from the English, and a written constitution from our founders. There are a lot of things to criticize lawyers for, but this isn't one of them. Indeed, in my admittedly biased but well-informed opinion, criminal defense lawyers are usually the best and least dangerous segment of the entire legal profession (until they become over-exposed political agitators, anyway). If you want to debate whether our ordinary practices in criminal courts should simply be brushed aside where the government claims a special interest -- today national security, tomorrow rampant gun crime -- then frame the issue honestly and make your best arguments.

In the meantime, a defendant named Johnnie Walker is, whether wisely or fortunately or not, in the sacred precincts of an American courtoom. He is innocent until the government proves him guilty beyond a reasonable doubt and he is entitled to as much due process as any other defendant. I sincerely hope the prosecutors win, and I don't feel a speck of pity for this defendant as a person. If a bullet had ended his miserable life in Afghanistan, that would have been fine with me.

Defense lawyers have a legitimate interest, and are indeed professionally obligated to examine the potential evidence.

To put in laweyerly (?) terms, then, it comes down to a question of motive. If the defense attorneys are trying to find evidence that can help their client, then more power to them! As you say, the fact that this puts the government in a bind is at best a secondary problem.

However, I doubt most people - including myself - believe this is the defense's motive. Rather, I suspect they are specifically looking for things that the government will not want to turn over, and then trying to come up with a reason why they need that. They aren't, I suspect, looking for evidence to help their client, but rather are looking for an excuse to get the government to turn them down, so they can play on that in court.

I say this, of course, without any personal knowledge of the attorneys in question. I hope I'm completely wrong. However, my own experience with lawyers seems a bit different than your own (I'll also admit it's almost certainly less extensive, given your screen name), and so I continue to doubt their motives.

Drew Garrett

Rather, I suspect they are specifically looking for things that the government will not want to turn over, and then trying to come up with a reason why they need that. They aren't, I suspect, looking for evidence to help their client, but rather are looking for an excuse to get the government to turn them down, so they can play on that in court.

A sensible point. In an adversary system, it can indeed be difficult to mark the dividing lines between unethical tactics, "routine" gamesmanship and legitimate defense (or prosecution, for that matter). For what its worth, it is unprofessional to file a motion SOLELY for the purpose of vexing the opposition. Naturally, a lot of defense motions tend to do that anyway, but there has to be some sort of decent legal rationale or the defense lawyer has violated his rules of professional conduct. Depending on the role of a confidential informant, it is, however, not unreasonable at all for the defense to want access and as much information as possible. You run into the same sort of thing in more mundane cases -- the prison snitch, for instance, who the prosecutor wants to keep secret so he doesn't get whacked in retaliation. Then the judge gets to make a careful case-by-case determination of what the defense gets and what it doesn't.

The point is, I don't think it is warranted to assume that the defense has no legitimate interest in this evidence, or to cite this as a reason why lawyers are supposedly not respected. I always get worried when people on a conservative forum start to talk like CFR is the end of the Constitutional world, but the Constitutional rights of a criminal defendant are just impediments to doing what "ought to be done" in a particular case.

I think the author's solemn assurance that gee, the government KNOWS it's obligations and, shucks, would NEVER keep Brady material from the defense may show a bit of bias on his part. I got a chuckle out of that one. (Besides, Brady material is a tiny subset of all discoverable material.)

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